cannot deny attend judgment on Monday.' (30 & 31 Ed. I. Br. Chr. 30, i. 500.)

What befell the unlucky Prior does not appear. The Crown was getting very strict, and rightly, about these franchises.

Default of appearance was a common incident then as now, perhaps commoner, owing to the difficulties of travelling, as the following illustrates. It was a case of a Writ of Right between Roger de Pengerskeke, demandant, and John de Leicester and Joan his wife, tenants. On the day of the return of the writ to cause the four knights to come and choose the Assize, John did not turn up and the default was recorded. 'On the next day John came to the bar and answered for his wife as attorney, and for himself in his own person, and said that the default ought not to hurt him because he was hindered by the rising of the waters.

The demandant's Attorney. "Where were you hindered?"
The Tenant. "At Cesham."

Mallore J. "At what hour of the day?"

The Tenant. "At noon."

The demandant's Attorney. " And we pray judgment if from that time he could be here at the hour of pleading, since it is 15 leagues away from here. Besides he began his journey too late."

The Tenant. "I travelled night and day."

Mallore J. "What did you do when you came to the water and could not pass? Did you raise the hue and cry and the menée, for otherwise the country would have no knowledge of your hindrance?" The Tenant. "No, Sir. No, Sir. I was not so much acquainted with the law, but I cried and hullooed" (jeo criay e brayay).

The demandant's Attorney. "Judgment outright of his default, and we pray seisin of the land."

Mallore J. "Will you accept the averment that he was hindered as he says?"

The demandant's Attorney. "If you adjudge so, Sir, but since he has admitted that he did not raise the menée, judgment of his admission."

Hengham J. "Keep your days until to-morrow." And on the morrow they were adjourned to the Quinzein of Trinity, which to some seemed strange.' (30 & 31 Ed. I. Br. Chr. 30, v. 122.) Not to us, familiar with the law's delay. But space is limited, and we must drop the curtain.

EDWARD MANSON.

THE DETERMINATION OF THE MOWBRAY ABEYANCE.

SE

EVERAL points of great interest to the student of Peerage law were raised in the Mowbray and Segrave case decided in 1877. But on the present occasion I do not propose to call attention to more than one-the alleged determination, in some way or other,' in favour of the Howard co-heir, of the abeyance into which the baronies of Mowbray and Segrave had fallen in the fifteenth century.

6

Anne, the child-heiress of the Mowbrays, Dukes of Norfolk, was an infant of six years old at her father's death (1475) and affianced to a son of Edward IV (one of the princes in the Tower'), who was thereupon created Duke of Norfolk. She died in tender years, leaving the succession to the baronies and vast estates of her house open to her relatives, Isabel and Margaret, wives respectively of James Lord Berkeley and Sir Robert Howard. Now these ladies were the daughters of the first Duke of Norfolk, son of John Lord Mowbray, by his marriage with the daughter and heir of John Lord Segrave, whose wife Margaret, Countess of Norfolk, was the heiress of Thomas de Brotherton,' son of Edward I, and Earl Marshal. Thus the death of the little heiress proved the means of a vast accession to the fortunes of the house of Berkeley, while it virtually founded those of the house of Howard. The Mowbray dignities were divided between them, Lord Berkeley being created Earl of Nottingham and Lord Howard Duke of Norfolk the same day (June 28, 1483). It is a singular circumstance that the seniority of the heiresses seems to be undetermined, Ulster declaring Lady Howard to be the elder, while the Complete Peerage of G. E. C. assigns that position to Lady Berkeley, as, apparently, did Dugdale. But in any case the Berkeleys had an equal share in the representation of this illustrious line, which makes it the more strange that the Howards should have been tacitly allowed to monopolize it as they virtually have done. In 1777 this representation, with all that it involved, passed away from the Howards to their heirs-general, the Lords. Stourton and Petre; and in 1882 the share of the Berkeleys similarly passed to their heir-general Mrs. Milman, now recognized as Baroness Berkeley. Thus, in 1877, there were three co-heirs to the house of Mowbray, namely the de jure Earl of Berkeley (whose right to that title has been confirmed by the recent decision, but

who never assumed it), who inherited one moiety, and the Lords Stourton and Petre, who shared the other. The Committee for Privileges decided, however, that the abeyance of the Mowbray and Segrave baronies had been determined in favour of the Howards 'previously to the reign of Queen Elizabeth,' and believed that it was done by Richard III.

The first point in this decision that invites close attention is its bearing on the doctrine of abeyance. The best authorities have agreed in placing the earliest undoubted case of the determination of an abeyance by the Crown so late as 1660, the previous cases being all more or less doubtful. The Mowbray decision, however, carried back the practice per saltum to the days of Richard III! But far more extraordinary, and indeed revolutionary, was the view taken of the evidence in proof of the abeyance being determined in favour of the Howard co-heir. In the Windsor case (1660) the determination was effected by formal patent, but in that of Ferrers of Chartley (1677) merely by the issue of the writ, which has since been the usual practice. But in the Mowbray case there is no evidence how or even when the abeyance was determined.

Down to the time of Lord Stourton's claim the position of the question was this. The barony of Segrave (though the Berkeleys had constantly included it among their titles) was believed to be still in abeyance. Mr. Fleming, Lord Stourton's own counsel, had himself admitted in the Scales case (p. 26) that the barony of Segrave is in abeyance between Lords Stourton and Petre and the heir of the late Earl of Berkeley.' So universal was this belief that a modern barony of Segrave was created in favour of the Fitzhardinge Berkeleys (1831). As to Mowbray, there were doubts. Mr. Courthope, in his Historic Peerage (1857), referring to the Mowbray summons of 1640, held that it may reasonably be doubted whether this writ of summons did not create a new barony instead of affecting the abeyance of the ancient dignity' (p. 340). But, in any case, no other evidence than this writ, for the determination of the abeyance, was supposed to exist. In Lord Stourton's original petition it was accordingly claimed that the Barony of Mowbray continued in abeyance . . . until the year 1640, when King Charles the First was pleased to determine the abeyance by summoning Henry Frederick Howard . . . as Lord Mowbray.' This allegation, of course, ignored the difficulty that the party to whom the writ was issued was not a co-heir to the dignity

at the time.

The claim, however, was subsequently altered in consequence of the discovery of Letters-missive from Richard III, including the baronies of Mowbray and Segrave in the Duke's style. In Lord

Stourton's 'additional case' it was confidently urged by his counsel that these Letters proved the determination of the abeyance 1.

These Letters, on which Mr. Fleming insisted so strenuously throughout, were, with singular eagerness, accepted as proof by the Committee. I append the relevant extracts from their judg

ment:

LORD CHANCELLOR.

'As to the abeyance of the Segrave barony, it appears to me that the Letters-missive of the 2nd of Richard III, signed by the King, would of itself be sufficient evidence that in some way or other the abeyance had been terminated by the Sovereign.'

LORD O'HAGAN.

'As to the abeyance, I should say that the Letters-missive of King Richard III are of themselves, without any question being raised as to the admissibility of the garter-plates in evidence, quite sufficient to prove the determination of the abeyance of the baronies. The King recognizes the determination of the abeyance; . . . and however it may have been accomplished. . . I think the evidence with regard to the determination of the abeyance of the baronies is perfectly sufficient.'

LORD BLACKBURN.

If it [the determination] is done by a document, under the hand of a Sovereign, by his sign manual, that is quite sufficient. Now here is evidence that the abeyance was so terminated. . . . I think myself, if it were necessary, it [the Letters-missive] should be construed as operating as an original grant under his hand to determine the abeyance; for I am not aware that the King could do more. I think the Letters-missive of King Richard III are quite conclusive upon the matter.'

LORD CHANCELLOR.

...

'I myself do not accept that [the garter-plates] as evidence with regard to the determination of the abeyance, but I think the other evidence of the determination of the abeyance is satisfactory, namely the Letters-missive of King Richard III.'

These extracts sufficiently establish the Committee's acceptance of Mr. Fleming's contention that the abeyance of the baronies.. was determined in favour of John Howard, the first Duke of Norfolk 2,' and that this determination, proved by the Letters-missive, 'forms the sole ground 3' for the subsequent user of the titles. Let us first consider the consequences of the principle thus laid down. It revolutionizes the doctrine of abeyance, as hitherto See Additional Case, No. 27 (p. 9), and the note thereupon: It is confidently submitted on the part of the Petitioner that the abeyance. was determined in favour of John Lord Howard Duke of Norfolk shortly after her [Anne's] death, and before the 24th of September, 1484 [the date of the Letters-missive].' 3 Ibid., p. 26.

1

2 Special Case, p. 290.

understood, in the direction aimed at by Mr. Fleming in the Scales case, and thus opened the door to a new series of claims. The Leicester patent of 1784, for instance, can now be invoked as determining (or proving the determination of) the Bourchier abeyance; and other recognitions by the Crown in formal instruments, however erroneous, can now be similarly interpreted.

Incidentally, it may here be added that, according to Lord Stourton's original case' (p. 11), the Duke of Norfolk received, Feb. 24, 148, a general pardon describing him by all the titles and names which could be attributed to him,' but the Pardon Roll reveals that the baronies of Mowbray and Segrave are not to be found among them. So too with his patent of creation on June 28 preceding. This then narrows the date of the alleged determination to February-September 1484. And though the time and manner of such determination, at this very early date, should have been clearly established, we have only the Lord Chancellor's belief that it took place in some way or other' on some unknown occasion. Assuming, however, that Mr. Fleming was right, and that, in the words of the petitioner's case, the abeyance . . . was determined in favour of John Howard Duke of Norfolk previously to the 24th of September,' 1484, what evidence is there of the user of the titles by the Howards? The petitioner was not able to adduce one till 1563, when the funeral certificate of the Duchess of Norfolk styles her husband 'Lorde Mowbray Segrave and of Brews' (p. 265). And this was dismissed, in his judgment, by Lord Blackburn (who oddly seems to have imagined that it was a coffinplate inscription 1) as 'no evidence at all.' With that exception the petitioner adduced no evidence of user till the garter-plate of 1611 (p. 265). Now what is the cause of this hiatus?

Assuming, as I have said, that the baronies of Mowbray and Segrave were duly vested in John Duke of Norfolk (d. 1485), they were obviously forfeited by the Act of Attainder in 1 Hen. VII (p. 135). Of this there can be no question. Now the act of 'restitucion' in favour of his son Thomas late erle of Surrey' (4 Hen. VII) expressly stipulates that this statute of adnullacion and restitucion extend not to the said Thomas to eny honour estate name and dignite but onely to the honour estate name and dignite of Erle of Surrey' (p. 140). This would obviously exclude the baronies of Mowbray and Segrave as well as that of Howard and the Dukedom of Norfolk. Accordingly when this Thomas Howard was created Earl Marshal (2 Hen. VIII) and Duke of Norfolk (5 Hen. VIII)

1 'The mere fact that a Duke of Norfolk put upon his Duchess' coffin-plate a statement that she was the wife of the Lord Mowbray and Segrave is no evidence at all.' Naturally enough, these words are not those italicized in the Minutes of evidence.